racial and ethnic disparity in manhattan jury pools: results of

8/14/2019 Racial and Ethnic Disparity in Manhattan Jury Pools: Results Of

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Racial and Ethnic Disparityin Manhattan Jury Pools:

Results of a Survey and Suggestions for Reform

By Bob Cohen, Esq., Policy Director, and Janet Rosales, Law Clerk

June, 2007


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Summary of Major Recommendations

Broaden the state juror source list to reflect the true racial and ethnic population ofManhattan.

Send a higher proportion of qualifications questionnaires and summonses tocommunities with a higher proportion of people of color and Hispanics, to compensatefor their lower response rates.

Update juror source list addresses more frequently, from annually to semi-annually, tocompensate for the higher mobility of people of color and Hispanics.

Increase state regulation of county use of juror source lists to ensure that the pool ofprospective jurors available for a particular trial is racially and ethically balanced.


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I. Citizen Action Survey

Introduction

Citizen Action of New York (CANY or Citizen Action) performed a survey of the

racial and ethnic composition of Manhattan residents appearing for jury duty beginning in

November 2006 in response to reports by members of the bar that there appeared to be a

disproportionate number of white prospective jurors in the jury assembly rooms in New

York County (the borough of Manhattan). We also surveyed the number of Hispanics.

Citizens are summoned to courthouse jury assembly rooms for processing prior to

appearing before individual judges and attorneys for possible selection as jurors through

the process known as voir dire. The attorneys were concerned that the disproportionate

number of whites in juries, if true, would violate the principle that litigants in New York

State courts are entitled to trials by juries selected at random from a fair cross-section of

the community. SeeJudiciary Law 500.

Methodology

The Citizen Action survey used physical observation of prospective jurors to

compare the percentage of the major racial groups and the percentage of Hispanics

gathered in jury rooms in Manhattan courtrooms with the 2000 U.S. Census numbers for

these groups. Our researchers simply noted the apparent race and apparent Hispanic

status of each prospective juror in each jury assembly room and tallied the results. Asking

prospective jurors in jury assembly rooms their race or ethnicity was not an option due to a

prohibition against interviewing prospective jurors.3

The survey lasted for a 12-week period, from the week of November 6-9, 2006

through the week of February 5-8, 2007 at the two major locations used for jury selection

for State Supreme Court civil court trials (60 Centre Street and 71 Thomas Street) as well


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that jury selection would not occur or be vastly curtailed during these weeks due to the

holidays. Surveying occurred during the Monday to Thursday period for each of the

scheduled weeks on days when each jury assembly room had regularly scheduled days

for jurors to report for initial processing in response to summonses. (A grid which indicates

the precise days the survey was performed appears as Appendix B.)4

In total, we tallied the race and Hispanic status of 14,429 prospective jurors

during the twelve-week period, comprising nearly all of those appearing for jury

duty in Supreme Court, New York County. The length of the survey, the high

percentage of the prospective jurors captured in the survey, and the large number

of people surveyed gives us confidence that we have provided an extremely

accurate picture of jury pools in Supreme Court in Manhattan.

In order to determine the extent to which the juror pool in jury assembly rooms in

Manhattan Supreme Court reflected the racial and ethnic composition of Manhattan, weused the 2000 U.S. Census results5 for the borough to determine the actual makeup of the

population.6 The U.S. Census determines the racial breakdown of the population by

asking all households to fill out a census form. The census form asks people to check

one of the first 5 racial categories listed in Chart 1 (next page), based on their primary

identification (White, Black or African-American, etc.). Respondents that write in entries

such as multiracial, mixed, interracial, or a Hispanic or Latino group are tallied by the

U.S. Census in the some other race category. Those who check more than one of the

4The survey was not performed for an extremely small number of scheduled days on the grid due to survey

staff unavailability.

5An alternative measure for the Manhattan population we could have used is the U.S. Census American

Community Survey (ACS) for 2005 (the latest available year). The ACS is a nationwide survey ofhouseholds that is intended to replace the decennial census long form (that asks households a greaternumber of questions than the short form everyone receives). SeeU.S. Census Bureau. Survey Basics:What is the American Community Survey?,http://www.census.gov/acs/www/SBasics/What/What1.htm. ForManhattan County, the sample size used was 14,745 households; it is therefore less accurate than thedecennial. http://www.census.gov/acs/www/SBasics/SSizes/SSizes03.htm. In any event, we do not believethat selecting the ACS would have substantively changed our central findings in regard to the


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first 6 categories, or who do a combination of checking a box and writing a comment that

indicates a separate race are categorized as two or more races (Category No. 7). Under

the U.S. Census scheme, Categories 1 through 7 total 100%:all people (including

Hispanics) are considered as members of one race only (Category Nos. 1-6), except for

the 4% of New Yorkers who indicate more than one race (Category No. 7). According to

the U.S. Census, the following is the breakdown of the racial composition of Manhattan:

Chart 1: Racial Composition of Manhattan; U.S. Census 2000

In order to use the U.S. Census results as a basis for comparison with the results of

our visual survey, we simplified the U.S. Census categories, collapsing the 7 racial

categories listed above into 4 categories. We decided that attempting to distinguish

among certain racial categories through quick physical observation would not yield

meaningful results. Further, given that few Manhattan residents fit under the American

Indian/Alaska Native and Native Hawaiian/Pacific Islander categories (comprising .5%

and .07% of the Manhattan population, respectively), we thought it made more sense to

combine them with other racial categories for this survey. The simplified scheme resulted

in the following census figures for Manhattan:

Census Racial Category # in Manhattan % of allManhattan Residents

1) White 835,510 54.36%2) Black or African-American 267,302 17.39%3) American-Indian/Alaska Native 7,617 .50%4) Asian 144,538 9.40%5) Native Hawaiian/Pacific Islander 1,069 0.07%

6) Some Other Race 217,383 14.14%7) Two or More Races 63,676 4.14%Total 1,537,195 100%


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Chart 2: Racial Composition of Manhattan; U.S. Census 2000(with certain racial categories combined)

The CANY researchers were given instructions and a training that included a

discussion as to which major ethnic groups in New York City fell under each of the fourU.S. Census categories listed in Chart 2.

Our survey also compared the number of Hispanics in jury assembly rooms with the

U.S. Census results. Under the U.S. Census scheme, Hispanics can be of any race, and

may select the appropriate racial category they fall under in filling out the census form. The

U.S. Census form contains a question in addition to the question as to ones race that asksif the respondent or members of his or her household are Hispanic. Based on this

question, the 2000 U.S. Census found that 417,816 Manhattan residents are Hispanic, or

27.2%. The Citizen Action researchers were therefore instructed to determine whether

each person observed appeared to be of Hispanic origin in addition to his or her apparent

race.

If not selected on a particular day, prospective jurors in Manhattan and other

counties in New York State are generally directed to return to jury assembly rooms an

additional day (or sometimes two days) to see if they will subsequently be selected.

However given the impossibility of remembering the faces of all people who were

Census Racial Category # inManhattan

% of allManhattanResidents

1) White 835,510 54.36%2) Black or African-American 267,302 17.39%3) Asian (combination of Asian

and Native Hawaiian/Pacific IslanderCensus categories)

145,607 9.47%

4) Other (combination ofAmerican Indian/Alaska Native,Some Other Race and Two orMore Races census categories)

288,676 18.78%

Total 1,537,195 100%


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Highlights of Findings

Our survey of 14,429 prospective jurors in Manhattan resulted in three criticalfindings:

Whites were extremely overrepresented in the pools of prospective jurors inManhattan, measured by the U.S. Census.

People of color and Hispanics were substantially underrepresented in jurorpools.

These findings apply equally in civil and criminal courts.

The specifics follow:

All Courts:

As Chart 3 summarizes, of the racial and ethnic categories in our survey, Whites were theonly group that was overrepresented in civil and criminal court jury pools, meaning that ahigher percentage of whites were in the jury pool we surveyed than their percentage of thepopulation of Manhattan, as measured in the 2000 Census. All other groups (Blacks,Asians, Other Races, and Hispanics) were underrepresented. Whites wereoverrepresented by 43%, Blacks were underrepresented by 42%, and Hispanicswere underrepresented by 77%.

Chart 3: Representation in Civil and Criminal Court: Jury Survey Findings

Race or HispanicStatus

# in JuryPool

% in JuryPool

% inCensus

ActualDifference

Expressed as%*

% Over orUnderrepresentation

Whites 11,055 77.7% 54.4% 23.3% 42.8%Blacks/African-

Americans

1,430 10.1% 17.4% -7.3% -42.0%

Asians/Hawaiians,Pacific Islanders

929 6.5% 9.5% -3.0% -31.6%

Other Races 815 5.7% 18.8% -13.1% -69.7%Total 14,429 100% 100%

Hispanics 887 6.3% 27.2% -20.9% -76.8%T l 14 429 100% !100%


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Civil Courts:

As Chart 4 summarizes, Whites were the only group that was overrepresented in the civilcourt jury pools as well. Whites were overrepresented by 42%, Blacks wereunderrepresented by 41%, and Hispanics were underrepresented by 77%.

Chart 4: Representation in Civil Court: Jury Survey Findings


# in JuryPool

% in JuryPool

% inCensus

ActualDifference

Expressed as%*


Whites 5,032 77.3% 54.4% 22.9% 42.0%

Blacks/African-Americans

665 10.2% 17.4% -7.2% -41.4%


429 6.6% 9.5% -2.9% -30.5%

Other Races 383 5.9% 18.8% -12.9% -68.6%

Total 6,509 100% 100%

Hispanics 417 6.4% 27.2% -20.8% -76.5%Total 6,509 100% 100%*A minus number indicates that this group is underrepresented.

Criminal Courts:

Chart 5 shows that the same pat for criminal court: Whites were the only group that was

overrepresented. Whites were overrepresented by 43%, Blacks wereunderrepresented by 43%, and Hispanics were underrepresented by 78%.

Chart 5: Representation in Criminal Court: Jury Survey Findings


# in JuryPool

% in JuryPool

% inCensus

ActualDifference

Expressed as%*


Whites 6,023 78.0% 54.4% 23.6% 43.4%Blacks/African-Americans

765 9.9% 17.4% -7.5% -43.1%


500 6.5% 9.5% -3.0% -31.6%

Other Races 432 5 6% 18 8% 12 6% 67 0%


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Variations in the Makeup of Juror Pools Day-to-Day:

We found some variations in the composition of juror pools on a day-to-day basis, making

us fear that it will be particularly hard to achieve representative juries on particular days inNew York County:

For 32 of the 59 days for which we surveyed the number of jurors and receivedmeaningful data;8 less than 10% of the prospective jurors were Black (rounded offto the nearest percent), and for 45 of those days, less than 10% of the prospective

jurors were Hispanic.

For 28of the 57days for which we surveyed the number of jurors and receivedmeaningful data; less than 10% of the prospective jurors were Black (rounded off tothe nearest percent), and for 51 of those days, less than 10% of the prospective

jurors were Hispanic.

Separating the Data By Type of Court and By Researcher:

We also broke down our survey data by the type of court (civil or criminal), and byresearcher, to see if this enabled us to identify practices that applied in one court ratherthan the other or pointed to flaws in our survey. We found no significant differences inour results based on the type of court. We also found that the findings of ourindividual researchers, C and F,9 were extremely consistent, at least in regard toWhites, Blacks, and Asians, giving us enormous confidence in our survey findings.

Civil vs. Criminal:

The results for all courts were 77.7% White, 10.1% Black or African-American, 6.5%Asian, and 6.2% Hispanic. This is compared to:

77.3% White, 10.2% Black or African-American, 6.6% Asian, and 6.4% Hispanic inthe case of civil court; and

78.0% White, 9.9% Black or African-American, 6.5% Asian, and 6.1% Hispanic in

the case of criminal court.

By Researcher:

The results for Researcher C were 78.4% White, 10.3% Black or African-American and 7 2% Asian


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Researcher Fs findings were quite similar: 77.6% White, 8.7% Black or African-American, and 5.5% Asian.

On the other hand, Cs and Fs findings differed somewhat in regard to thepercentage of Hispanics (4.5% for C vs. 8.4% for F) and of Others (4.1% for C vs.8.3% for F), perhaps reflecting the difficulty of identifying the race or ethnicity ofthese populations by physical observation.


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including attendance, orientation, panel selection and payroll. SeeInterim Report of the

Commission on the Jury to the Chief Judge of the State of New York, 23 (June 2004)

(hereinafter, Jury Reform-Interim Report). In New York City boroughs, including

Manhattan, the county clerk is the Commissioner of Jurors. Judiciary Law 502.

Jurors are initially summoned by county jury commissioners through having their

name included on the statewide jury source list. The state Office of Court Administration

(OCA) has the sole responsibility for generating the jury source list. Each year, OCA

compiles information from voter registration, drivers license, income tax, Department ofLabor and family assistance lists as well as an Automated Jury File. Jury Reform-Interim

Report, at 23-24. Included within the Automated Jury Files are the names of persons

eligible to be called for jury service under the Judiciary Law.

Based on this source list, qualification questionnaires are sent to prospective jurors.

The Commissioner of Jurors has compliance authority and may seek monetary penaltiesand request that the court use its contempt power for non-compliance. Judiciary Law

527; See also73A NY Jur Jury 70, 71. Individuals are disqualified for jury service

based on of felony convictions, lack of fluency in English, based on age (under eighteen

years of age) or because they are not United States citizens. Judiciary Law 510. By

statute, juror commissioners must maintain a list of disqualified individuals and the reasons

for disqualification. 73A NY Jur Jury 70.

The local jury commission offices order summonses from the automated state list

and mail and print them locally based on local court needs. In response to summonses,

prospective jurors arrive at the courthouse jury assembly rooms to participate in the

empanelling process for specific trials, including for voir dire. Each day that a juror

performs service, he or she is entitled to a per diem $40 allowance (effective in 1997,

increased from $15). Judiciary Law 521; Jury Reform-Interim Reportsupraat 27.

These basic steps compose the foundation of the current jury system throughout

New York State The authority to change the jury system is held by the State Legislature


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.

The Federal Perspective

In 1968, Congress passed the Jury Selection and Service Act (JSSA or the

federal jury selection act) following a March 1967 Judicial Conference that recommended

a uniform method for assembling jury pools. The 1965 legislation resulted from years and

even decades of challenges to the uneven representation in juries and jury selection

systems. Based on these challenges, Congressional concern with inconsistent procedures

for developing jury pools heightened. Cynthia Williams, Jury Source Representativeness

and the Use of Voter Registration Lists, 65 N.Y.U.L.REV. 590, 599-600 (1990)

(hereinafter, Voter Registration Lists).

The legislative purpose of JSSA is set forth in 28 USC 1861:

It is the policy of the United States that all litigants in Federal courts entitled

to trial by jury shall have the right to grand and petit juries selected at randomfrom a fair cross section of the community in the district or division whereinthe court convenes. It is further the policy of the United States that all citizensshall have the opportunity to be considered for service on grand and petit

juries in the district courts of the United States, and shall have an obligationto serve as jurors when summoned for that purpose.

The primary mechanism for implementing the right to a fair cross section of the communityis via each district courts jury selection plan, a statutory mandate of 28 USC 1863.

Constitutional scrutiny of federal jury pools has been rooted in either an individuals

claim that 1) he or she did not obtain a fair trial because of a disparate jury or that 2) an

agency or judges effort to modify the jury pool composition was invalid. Courts have used

two constitutional standards to determine whether an individual, primarily in criminal trials,can overturn convictions based on a partial jury and whether district jury selection plans

and associated methodologies meet the requirements of the constitution. Voter

Registration Listssupraat 596-602. The two standards include: the equal protection


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Legislative History of Judiciary Law Article 16

New York State completely overhauled Article 16 of Judiciary Law in 1977. See

Chapter 315, Laws of 1977. Among the goals were to make the New York statute similar

to the Federal Jury Selection Service Act of 1968. See generallyMemorandum of Office of

Court Administration, 1997 N.Y. Sess. Laws, Vol. 2, at 2617. In its legislative

memorandum on the statutory revisions, the Office of Court Administration stated that

Judiciary Law 506-507 provided for the establishment of random selection of jurors

from voter registration lists, supplemented by utility users, motor vehicle operators, and

state and local taxpayers. Id.

Section 506 sets forth the types of lists used to generate potential jurors names. In

1994, the Legislature amended the section to add various social services program

participation lists as an additional source. Currently, sources include lists of utility

subscribers, licensed operators of motor vehicles, registered owners of motor vehicles,

state and local taxpayers, persons applying for or receiving family assistance, medical

assistance or safety net assistance and persons receiving state unemployment benefits.

Once the source lists have been compiled, 507 provides that selection of names must be

random.Challenges to New York States jury selection system or its method for determining

source lists have been unsuccessful to date. People v. Guzman, 89 A.D.2d 14 (2d Dept

1982); People v. Taylor, 191 Misc. 2d 672 (Sup. Ct. Queens Cty. 2002). Challenges

brought in criminal trials have contended that disparate jury composition violates the Sixth

and Fourteenth Amendments. People v. Levandowski, 190 Misc.2d 738, 746 (Sup. Ct.

Rensselaer Cty. 2002) (court rejected criminal defendants claim that constitutional

protections of the Sixth and Fourteenth Amendments required source lists based on town

residence rather than on a county wide basis).


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process; and 3) postponements and excusals. At the outset, it should be noted that

solutions should be multi-faceted because the reality of underrepresentation is based on a

number of factors. Mary Catherine Campbell, Current Developments 2004-2005, Black,

White, and Grey: The American Jury Project and Representative Juries, 18 GEO.J.LEGAL

ETHICS 625, 627 (2005) (hereinafter, American Jury Project).

The Statewide Jury Source List and Its Use By Counties

Two proposed ways to increase representation of people of color and Hispanics areby 1) source list supplementation and 2) aggressively increasing source data accuracy.

The federal jury selection act requires court system administrators and jury commissioners

to create jury selection plans to ensure that jury pools are representative. Congress

selected voter registration lists as the primary source of jurors, [explaining that] these lists

provide the widest community cross section of any list readily available. SeeJohn P.Bueker, Jury Source Lists: Does Supplementation Really Work?, 82 CORNELL L.REV. 390,

396 (January 1997) (hereinafter, Does Supplementation Really Work?). However, using

voter registration lists as the sole source has been highly criticized because a voter list

does not in fact represent a fair cross section of the community. Id. at 392. Twelve

states, New York among them, and numerous federal districts have responded to these

criticisms by implementing multiple source lists, a practice known as supplementation. Id.;

See alsoVoter Registration Lists, supraat 633. (Pursuant to Judiciary Law 506, voter

registration lists are one of the sources of names of prospective jurors in New York State.)

As previously stated, New Yorks statute requires multiple sources for the statewide

jury source list, including lists of utility subscribers, licensed operators of motor vehicles,

registered owners of motor vehicles, state and local taxpayers, persons applying for or

receiving family assistance, medical assistance or safety net assistance and persons

receiving state unemployment benefits. The Chief Administrator of the courts has the

authority to add sources not listed in the statute Judiciary Law 506; 22 NYCRR 128 3


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As traditional supplementation efforts have not been highly successful in increasing

representation of people of color and Hispanics, other efforts are necessary. SeeDoes

Supplementation Really Work?, supraat 392-93. Pennsylvanias statute, for example,

grants express authority to supplement jury source lists to include persons listed in

telephone, city and municipal directories, to any tax assessment sources, federal and state

programs and those on school census lists. 42 Pa.C.S. 4521. Using lists from

community organizations may also provide expanded diversity. SeeAndrew J. Lievense,

Fair Representation on Juries in the Eastern District of Michigan: Analyzing Past Effortsand Recommending Future Action, 38 U.MICH.J.L.REFORM 941, (Summer 2005)

(hereinafter, Eastern District of Michigan).10 Another legislative approach is to expressly

authorize jury commissioner discretion on how to supplement lists, thereby enabling

variations based on the needs of individual counties. For instance, a Virginia statute

permits jury commissioners to use voter registration lists and where feasible, a list ofpersons issued a driver's license, city or county directories, telephone books, personal

property tax rolls, and other such lists as may be designated and approved by the chief

judge of the circuit, to select the jurors representative of the broad community interests, to

be placed on the master jury list. Va. Code Ann. 8.01-345.

In addition to broadening jury source lists, the accuracy of source lists is crucial to

ensuring that the initial search for prospective jurors can achieve a fair cross section of the

community. People of color and Hispanics tend to be more mobile. As a result, their

addresses in source lists tend to be less accurate than information in regard to whites.

Does Supplementation Really Work, supraat 435. In New York, the OCA compiles the

juror source list annually. Interim Report, June 2004at 23. However, to avoid list

staleness, and to combat the challenges of undeliverable mail to communities of color,

commentators have suggested that an annual update is insufficient. SeePeople v. Taylor,

191 Misc. 2d at 682. Furthermore, an outdated database system which utilizes multiple

lists as in New York has an added challenge because when duplicates remain


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exacerbated and amplified. Id. at 683. To address these concerns, we recommend that

the juror source list be updated at least semi-annually.

New Mexico requires that the database of registered voters and drivers license

holders be updated monthly and the database of personal income filers be updated

quarterly. N.M. Stat. Ann. 38-5-3. Frequent updates to source lists captures new

residents more readily and locates existing residents who recently moved. Another option

would be to create a system that secures accurate information by requiring individuals to

complete change of address forms. American Jury Project supraat 629 (recommendingimplementation of a National Change of Address System to keep information current).

Finally, the potential for underrepresentation of people of color and Hispanics for

particular trials also occurs due to the relative lack of state oversight of the use of the OCA

jury source list. As previously stated, local juror commission offices are responsible for

issuing summonses to prospective jurors. By regulation, jurors are to be selected forsummoning at random from prospective jurors previously qualified for service. See22

NYCRR 128.6. However, there are no state requirements other than the requirement of

randomness governing who is selected for summoning for a particular trial. Our survey

showed there is considerable variation as to the racial and ethnic breakdown of those who

appear in jury rooms on a day-to-day basis, meaning that there is a greater danger on

some days than others of picking unrepresentative juries. For example, as previously

stated, for 32 of the 59 days of the Citizen Action survey, less than 10% of the prospective

jurors in civil jury pools were Black, and for 45 of those days, the jury pool was less than

10% Hispanic. It is hard to imagine how a representative jury could be selected given

such a pool. Increased state regulation of county use of state juror source lists should be

considered, particularly with a view towards increasing the likelihood that the jury pool

available for each trial is racially or ethnically balanced.

The Qualifications Process


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minority groups have been underrepresented in the past and as such minority participation

is especially important. Id.

Stratified sampling techniques have been proposed as an effective way to combat

low response rates among communities of color and Hispanics. Jury pool administrators

can identify zip codes with a high proportion of people of color and Hispanics. Does

Supplementation Really Work?, supraat 427-28. Then the local commissioner office

sends additional questionnaires or a larger percentage of questionnaires to individuals

within those communities. Id. The weighted sampling over-sampl[es] those populationsthat continue to yield disproportionately fewer venire members. Eastern District of

Michigan, supraat 962-63. We recommend that this technique be utilized in Manhattan to

increase jury representativeness. Similarly, a higher percentage of summonses can be

directed to certain zip codes.

Techniques like weighted sampling are of course subject to constitutional scrutiny.

Commentators have argued that adding to the jury pool is significantly different than the

situation in Ovalle, in which the Sixth Circuit struck down removal of whites from the jury

pool. Leslie Ellis and Shari Seidman Diamond, Symposium: The Jury and Race: Race,

Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 CHI.-KENT.L.

REV. 1033, 1055-56 (2003). Although weighted sampling would be tested under Ovalle, it

appears promising that it would be upheld as against a constitutional challenge. Id.; See

Developments in the Law: The Civil Jury: Jury Selection and Composition, 110 HARV.L.

REV. 1443, 1453 (1997) (recommending weighted or stratified sampling but stating that its

legality is uncertain).

Another, although potentially unpopular mechanism to increase representation of

people of color and Hispanics is to step up enforcement efforts for avoiding jury duty. In

New York State, juror commissioners have compliance authority and may take action

against those not responding through the courts contempt power or by bringing

noncompliance proceedings for civil penalties NY CLS Jud 527; See also 73A NY Jur


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Disqualifications

As already stated, once a prospective juror receives a summons to appear for jury

duty, or a few weeks prior to receipt of the summons, as in the case of Supreme Court,

New York County, he or she must complete a qualifications questionnaire. It is at this

juncture that some individuals are removed from the jury pool based on statutorily

mandated disqualifying criteria. New York abolished the use of a permanent qualified jury

in 1995 following the recommendations of the 1994 Jury Project. As such, jury lists are

updated based on the answers to qualifications questionnaires.Pursuant to Judiciary Law 510, individuals only qualify as a juror if they meet all of

the following criteria:

1. Be a citizen of the United States, and a resident of the county.2. Be not less than eighteen years of age.3. Not have been convicted of a felony.4. Be able to understand and communicate in the English language.

See alsoGuzman, 89 A.D.2d 14 (2d Dept 1982).

People of color and Hispanics tend to qualify at a lower percentage rate than

Caucasians. In Guzman, of the Hispanics who appeared to complete qualification

questionnaires only 45% qualified. The commissioner explained that the majority of

disqualifications resulted from individuals failure to read, write and comprehend the

English language. 89 A.D.2d at 11-12.

As qualifications based on English proficiency set forth minimum, practical

baselines, most commentators have recognized that wholesale changes in order to

increase representation of people of color and Hispanics would be illogical and against the

interests of justice. However, the requirement for proficiency in English might be furtheranalyzed as an area for improvement. For example, once a juror is disqualified, the

individual remains off the list. Judiciary Law 509 mandates that a record of the persons

who are found not qualified or who are excused, and the reasons therefor, shall be


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Some states take a different approach than New Yorks permanent bar to jury service

based on a previous felony conviction, enabling the restoration of rights based on the type

of felony and the passing of a specified time period. Rhode Island law, for example,

provides that [n]o person convicted of a felony shall be allowed to serve as a juror, until

completion of such felon's sentence, served or suspended, and of parole or probation

regardless of a nolo contendere plea. R.I. Gen. Laws 9-9-1.1. This statute more

readily enables a felons rights to be restored and thus added as a qualified juror.

Postponements and Excusals

Prospective jurors who are otherwise qualified might not ultimately serve because

they request and are granted postponements or excusals. A postponement is readily

granted if an individual has not previously requested one, the application is timely and the

person agrees to serve on a date no more than six months beyond postponement.

Judiciary Law 517; 73A NY Jur Jury 74. On the other hand, an excusal is granted

only if an individual is incapable of jury service because of a mental or physical condition

or demonstrates that service would cause an undue hardship or extreme inconvenience to

the prospective juror because of a person under his or her care or to the public. Judiciary

Law 517; 73A NY Jur Jury 75. Further, the individual must show that a postponement

does not suffice. Id. OCA updates its records accordingly. Jury Reform-Interim Report

supraat 25.

It may be difficult to further increase jury representativeness in New York State

through the modification of requirements in regard to postponements and excusals,

although this area should be studied further. New York has already implemented

measures to reduce postponements, including one day or one trial commitments, and

automated, easy steps to postpone and reschedule jury service. SeeJury Project1994;

Jury Reform-Interim Report, June 2004; See generally Mark A. Behrens, Five Ways the

Kentucky Legislature Can Improve Jury Service 42 BRANDEIS L J 1 11 (Fall 2003)


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elder or child care during jury service. Although further limiting the instances in which

prospective jurors could obtain excusals might increase jury representativeness, it might

impose hardships on many individuals.


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III. Conclusion

The survey accompanying this report found overwhelming evidence of

underrepresentation by people of color and Hispanics in jury pools in Manhattan. The

obvious result of underrepresentation in jury pools is that parties and judges alike are

impeded in their efforts to pick juries that represent a fair cross-section of Manhattan.

Given the importance of representative juries to the maintenance of a fair justice system in

New York State, a continuation of the disparities found in this survey is intolerable.The recommendations in this report should therefore be carefully considered by

policymakers on a local and state level. Administrative changes will be necessary to

address the disparities we found, especially the broadening of juror source lists and

appropriate changes to the use of those lists to reflect the actual racial and ethnic

composition of Manhattan. Given that Article 16 gives local court administrators and theChief Administrator considerable discretion in regard to the process of summoning jurors

and selecting those to be summoned for jury duty, court administrators should not wait for

the Legislature to act to address this urgent problem.


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Appendix A

Sample State Statutes

What is Included in Source Lists

CaliforniaCal Code Civ Proc 197 197. Random selection of jurors; Appropriate source lists(a) All persons selected for jury service shall be selected at random, from a source orsources inclusive of a representative cross section of the population of the area served by

the court. Sources may include, in addition to other lists, customer mailing lists, telephonedirectories, or utility company lists.

(b) The list of registered voters and the Department of Motor Vehicles' list of licenseddrivers and identification cardholders resident within the area served by the court, areappropriate source lists for selection of jurors. These two source lists, when substantiallypurged of duplicate names, shall be considered inclusive of a representative cross sectionof the population, within the meaning of subdivision (a).

(c) The Department of Motor Vehicles shall furnish the jury commissioner of each countywith the current list of the names, addresses, and other identifying information of personsresiding in the county who are age 18 years or older and who are holders of a currentdriver's license or identification card issued pursuant to Article 3 (commencing with Section12800) of, or Article 5 (commencing with Section 13000) of, Chapter 1 of Division 6 of theVehicle Code. The conditions under which these lists shall be compiled semiannually shall

be determined by the director, consistent with any rules which may be adopted by theJudicial Council. This service shall be provided by the Department of Motor Vehiclespursuant to Section 1812 of the Vehicle Code. The jury commissioner shall not disclosethe information furnished by the Department of Motor Vehicles pursuant to this section toany person, organization, or agency.

Florida

Fla. Stat. 40.011 40.011. Jury lists(1) The Department of Highway Safety and Motor Vehicles shall deliver quarterly to theclerk of the circuit court in each county a list of names of persons who reside in thatcounty, who are citizens of the United States, who are legal residents of Florida, who are18 years of age or older and for whom the department has a driver's license or


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Illinois705 ILCS 310/2aCombination of Lists

Sec. 2a. The combination of the lists of registered voters, driver's license, IllinoisIdentification Card, and Illinois Disabled Person Identification Card holders and thepreparation of jury lists under this Act shall, when requested by the Chief Judge or hisdesignee, be accomplished through the services of the Administrative Office of the IllinoisCourts.

MichiganMCLS 600.1304

600.1304. Selection of jurors; list.Sec. 1304. The jury board shall select from a list that combines the driver's license list

and the personal identification cardholder list the names of persons as provided in thischapter to serve as jurors.

New JerseyN.J. Stat. 2B:20-2 2B:20-2. Preparation of juror source lista. The names of persons eligible for jury service shall be selected from a single jurorsource list of county residents whose names and addresses shall be obtained from amerger of the following lists: registered voters, licensed drivers, filers of state gross incometax returns and filers of homestead rebate application forms. The county election board,the Division of Motor Vehicles and the State Division of Taxation shall provide these listsannually to the Assignment Judge of the county. The Assignment Judge may provide forthe merger of additional lists of persons eligible for jury service that may contribute to the

breadth of the juror source list. Merger of the lists of eligible jurors into a single juror sourcelist shall include a reasonable attempt to eliminate duplication of names.

b. The juror source list shall be compiled once a year or more often as directed by theAssignment Judge.

c. The juror source list may be expanded by the Supreme Court as it deems appropriate.

Pennsylvania42 Pa.C.S. 4521 4521. Selection of prospective jurors(a) PREPARATION OF MASTER LIST OF PROSPECTIVE JURORS. --At least annuallythe jury selection commission shall prepare a master list of prospective jurors. The list shallcontain all voter registration lists for the county which lists may be incorporated by


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(2) Persons who pay taxes or are assessed for taxes imposed by any politicalsubdivisions.

(3) Persons in the county participating in any State, county or local program authorizedby law and, to the extent such names are available, persons participating in any Federalprogram authorized by law.

(4) Persons who are on school census lists.

(5) Any other person whose name does not appear in the master list of prospectivejurors and who meets the qualifications for jurors set forth in this chapter and who makes

application to the commission to be listed on the master list of prospective jurors.

VirginiaVa. Code Ann. 8.01-345 8.01-345. Lists of qualified persons to be prepared by jury commissioners; randomselection process [in part]

The jury commissioners shall utilize random selection techniques, either manual,mechanical or electronic, using a current voter registration list and, where feasible, a list ofpersons issued a driver's license as defined in 46.2-100 from the Department of MotorVehicles, city or county directories, telephone books, personal property tax rolls, and othersuch lists as may be designated and approved by the chief judge of the circuit, to selectthe jurors representative of the broad community interests, to be placed on the master jurylist. The commissioners shall make reasonable effort to exclude the names of deceased

persons and unqualified persons from the master jury list. After such random selection, thecommissioners shall apply such statutory exceptions and exemptions as may beapplicable to the names so selected. The chief judge shall promulgate such proceduralrules as are necessary to ensure the integrity of the random selection process and toensure compliance with other provisions of law with respect to jury selection and service.

Updating Source Lists

New MexicoN.M. Stat. Ann. 38-5-3 38-5-3. Source for juror selection

A Each county clerk shall make available to the secretary of state a database of registered


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database of New Mexico personal income tax filers by county, which shall be updatedquarterly.

Compliance and Enforcement

WashingtonRev. Code Wash. (ARCW) 2.36.170 2.36.170. Failure of juror to appear -- PenaltyA person summoned for jury service who intentionally fails to appear as directed shall beguilty of a misdemeanor.

NevadaNev. Rev. Stat. Ann. 6.0406.040. Penalty for failing to attend and serve as a juror.Any person summoned as provided in this chapter to serve as a juror, who fails to attendand serve as a juror, shall, unless excused by the court, be ordered by the court to appearand show cause for his failure to attend and serve as a juror. If he fails to show cause, heis in contempt and shall be fined not more than $500.

Qualifications

Delaware10 Del. C. 4509 4509. Disqualification from jury service

(a) The Court shall determine on the basis of information provided on the juror qualification

form or interview with the prospective juror or other competent evidence whether theprospective juror is disqualified for jury service.

(b) All persons are qualified for jury service except those who are:

(1) Not citizens of the United States;

(2) Less than 18 years of age;

(3) Not residents of the county of prospective jury service;

(4) Unable to read, speak and understand the English language;

(5) Incapable by reason of physical or mental disability of rendering satisfactory jury


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Rhode IslandR.I. Gen. Laws 9-9-1.1 9-9-1.1. Qualifications of jurors

(a) A person is qualified to serve as a juror if the person is:(1) A citizen of the United States; and(2) A resident of Rhode Island who either:

(i) Resides in the county where the person is registered to vote; or(ii) Is licensed to operate a motor vehicle within this state; or(iii) Possesses a Rhode Island identification card issued pursuant to the provisions of

3-8-6 and 3-8-6.1; or(iv) Is an individual filing a state income tax return; or

(v) Is an individual recipient of unemployment compensation.(3) At least 18 years of age;(4) Able to understand and participate in the court proceedings; and(5) Physically and mentally capable of performing in a reasonable manner the duties of a

juror.(b) No person shall be allowed to serve as a juror if he or she has been lawfullyadjudicated to be non compos mentis.(c) No person convicted of a felony shall be allowed to serve as a juror, until completion ofsuch felon's sentence, served or suspended, and of parole or probation regardless of anolo contendere plea.(d) Notwithstanding subdivisions (a)(4) and (5), a person with a disability shall not beineligible to serve as a juror solely on the basis of his or her disability, and if that personmeets the above requirements, with reasonable accommodations if necessary, he or sheshall be deemed a qualified juror.(e) Nothing in this section shall prevent the court from disqualifying a prospective jurorbecause he or she lacks a faculty or has a disability which will prevent the potential jurorfrom being a competent juror in a particular case.(f) Nothing in this section shall be construed to limit a party's right to peremptorilychallenge jurors.

WisconsinWis. Stat. 756.02756.02. Juror qualifications.

Every resident of the area served by a circuit court who is at least 18 years of age, a U.S.citizen and able to understand the English language is qualified to serve as a juror in thatcircuit unless that resident has been convicted of a felony and has not had his or her civilrights restored. Judicial Council Note, 1996: This section, based on prior s. 756.01 (1),implements ABA Standard 4. [Re SCO No. 96-08 eff. 7-1-97]


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(1) The prospective juror has a mental or physical condition that causes him or her to beincapable of performing jury service. The juror, or the juror's personal representative, shallprovide the court with documentation from a physician licensed to practice medicine

verifying that a mental or physical condition renders the person unfit for jury service for aperiod of up to twenty-four months.

(2) Jury service would cause undue or extreme physical or financial hardship to theprospective juror or a person under his or her care or supervision. A judge of the court forwhich the individual was called to jury service shall make undue or extreme physical orfinancial hardship determinations. The authority to make these determinations is delegableonly to court officials or personnel who are authorized by the laws of this state to functionas members of the judiciary.

C. A person asking for a waiver based on a finding of undue or extreme physical orfinancial hardship shall take all actions necessary to have obtained a ruling on that requestby no later than the date on which the individual is scheduled to appear for jury duty.D. For purposes of this Chapter, "undue or extreme physical or financial hardship" islimited to circumstances in which an individual would:

(1) Be required to abandon a person under his or her personal care or supervision due tothe impossibility of obtaining an appropriate substitute care giver during the period ofparticipation in the jury pool or on the jury; or

(2) Incur costs that would have a substantial adverse impact on the payment of theindividual's necessary daily living expenses or on those for whom he or she provides theprincipal means of support; or

(3) Suffer physical hardship due to an existing illness or disease.E. "Undue or extreme physical or financial hardship" does not exist solely based on thefact that a prospective juror will be required to be absent from his or her place ofemployment.F. A person asking a judge to grant a waiver based on "undue or extreme physical orfinancial hardship" shall be required to provide the judge with documentation, such as, butnot limited to federal and state income tax returns, medical statements from licensedphysicians, proof of dependency or guardianship, and similar documents, which the judgefinds to clearly support the request to be excused. Failure to provide satisfactorydocumentation shall result in a denial of the request for a waiver.G. After twenty-four months, a recipient of a petit jury service waiver under this Sectionshall become eligible once again for qualification as a juror.

Appendix B


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Appendix B

28

Location MondayEvenWeeks

MondayOddWeeks

TuesdayEvenWeeks

TuesdayOddWeeks

WednesdayEven Weeks

WednesdayOdd Weeks

ThursdayEvenWeeks

ThursdayOddWeeks

Comments

60 Centre Street, Room452 (note: are 2 nearbyrooms, both called 452);(646) 386-5961

Civil court

71 Thomas St, Room100; (646) 386-5965

Civil court

100 Centre Street,Room 1517; (646) 386-5962

Criminalcourt

111 Centre StreetRoom 1121; (646) 386-

5964

Criminalcourt

Highlighted means court doing jury selection that day.

Schedule: Observation will occur for 12 weeks, although theres a two-week break in December (the weeks of December 18th

and December 25th) .

Observation is Monday to Thursday, unless theres a holiday (see below); theres no jury selection on Fridays. Heres when were going to do observation:1. November 6-9; no work November 7

th(Election Day)

2. November 13-16*3. November 20-23; no work November 23

rd(Thanksgiving)

4. November 27 to December 15. December 4 to December 76. December 11 to December 147. January 1 to 4; no work January 1 (New Years)8. January 8 to 119. January 15

to 18; no work January 15 (Martin Luther King Jr. Day)

10. January 22 to January 2511. January 29 to February 1

12. February 5 to February 8

racial and ethnic disparity in manhattan jury pools: results of

Documents